Professor Garrett’s impressive empirical analysis of the first 200 post conviction DNA exonerations in the United States (“Garrett Study”) has the potential to affect contemporary debates surrounding our nation’s criminal justice system. This Response explores this potential by harnessing the Study’s data in support of arguments for and against a contested doctrinal proposition — that guilt-based harmless error rules should never apply in death penalty appeals. My analysis starts with the premise that the Study’s real world impact will necessarily depend on how jurists, politicians, and scholars extrapolate the explanatory power of the data beyond the 200 cases themselves. While critics of contemporary criminal justice policies will likely see Professor Garrett’s data as revealing the tip of an iceberg of deeper structural flaws, defenders of the status quo will predictably resist generalizations from this closed data set to any larger picture of criminal justice administration. Much therefore rides on the perceived inductive reach of these 200 cases.
Death and Harmless Error: A Rhetorical Response to Judging Innocence, 108 Colum. L. Rev. Sidebar 1 (2008)